APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, the defendant, Pamela Pastorino, was found guilty of aggravated battery and murder. She was sentenced to serve not less than 20 nor more than 60 years in the penitentiary. The defendant appeals her conviction, alleging that: (1) the trial court erred in orally instructing the jury to consider the verdict of murder before considering the verdict of voluntary manslaughter; (2) the trial court erred in declaring two witnesses to be court's witnesses; (3) the State improperly imparted substantive character to the prior inconsistent statements of two court's witnesses; (4) the trial court improperly declined to submit to the jury an instruction on voluntary manslaughter (unreasonable belief that use of force was justified); (5) the trial court erred in reopening the case after both sides had rested; and (6) the trial court overstepped the bounds of neutrality in the way it conducted the trial.
On November 19, 1977, police were called to the home of Leonard Warchol, the defendant's stepfather. They found Warchol dead in the bathtub. An examination of the body revealed six knife wounds and 20 injuries to the head, consistent with having been caused by a pipe. The police recovered from the living room floor two pieces of pipe which contained blood and hair similar to that of the deceased. The cause of death was determined to be stab wounds in association with cranial injury.
The defendant was charged with the murder of her stepfather. The defendant's sister, Debbie Saylor, was also charged with the offense, but the disposition of her case took place in the juvenile court. At the time of trial, Debbie Saylor was in the custody of the Department of Corrections pursuant to an adjudication of delinquency based upon her admission to a petition charging her with the murder.
At the defendant's trial, the State called Danny Saylor, the defendant's brother. Danny Saylor's attorney informed the court that Danny would repudiate a prior written statement he had given to the police. The trial judge then stated that if Danny changed his statement, he would be considered a court's witness.
Danny Saylor testified that he saw his sisters at the defendant's home a few hours after the police found Warchol's body. He had a private conversation with them, during which the defendant said that she "got tired of, you know, fighting over little — you know, little stuff." Danny testified that the defendant said nothing about how Warchol died. He stated that Debbie Saylor told him that Debbie stabbed their stepfather and that the defendant hit him with a pipe. Debbie also said that both she and the defendant were wearing gloves at the time. The defendant was present during this conversation, but said nothing.
The State, over defense objection, sought to impeach Danny Saylor with a prior unsworn statement that he had given the police. In his prior statement, Danny said that the defendant admitted wearing gloves and hitting Warchol with a pipe. On cross-examination, Danny denied the truth of the prior statement and stated that he had been smoking marijuana and drinking before talking to the police.
The State next called Debbie Saylor, the defendant's sister. She invoked her fifth amendment right against self-incrimination and, after being given immunity by the State, still refused to testify.
The State then called Danny Minigh, who testified that he had known the defendant and her brother and sister for several years. Minigh stated that a few months before Warchol's death, the defendant asked Minigh whether he knew anyone who wanted to make $500. When Minigh asked her what the money was for, the defendant "said something about bumping Lennie off." Minigh further testified that he spoke with the defendant and her sister on the night Warchol died. The defendant told Minigh that there had been an argument over making a pizza, that she hit her stepfather with a pipe while he was sitting in a chair, that Debbie stabbed him, and that she was stabbed in the finger while trying to prevent Debbie from further stabbing Warchol. The defendant also told Minigh she and Debbie had disposed of the pipe and gloves they had used. Minigh testified that while attending Warchol's wake, he asked the defendant where she had hit him. The defendant replied, "In the head."
On the following day of the trial, the State again called the defendant's sister, Debbie Saylor. Over defense objection, Debbie took the stand in the presence of the jury. She refused to testify other than to say that she was the defendant's sister. The court advised Debbie Saylor that she would be sentenced for contempt on the following morning. Both sides rested their cases.
The next morning, Debbie Saylor indicated that she decided to testify. The court stated that she would be made a court's witness. The defendant's objection to this procedure was overruled. The judge explained that in the interest of justice the jury should hear Debbie's testimony, since she was an eyewitness to the murder. The judge then reopened the case and allowed both sides to question Debbie.
Debbie Saylor testified that she stabbed Warchol with a knife while he was "looking at T.V." She did not know whether she also hit him with a pipe. Debbie stated that at the time she stabbed Warchol, she thought the defendant was in the basement. She denied planning the murder with the defendant and denied wearing gloves at the time.
Debbie admitted giving a statement to the police which differed from her testimony at the trial. The State's Attorney tendered the witness her prior written statement and questioned her about its contents. In her prior statement, Debbie said that she and the defendant went into the basement together. When they went back upstairs, Debbie took a knife from the kitchen wall which she used to stab Warchol. Debbie stated that the defendant hit Warchol with a pipe.
After Debbie testified, the defendant took the witness stand. The defendant testified that on the night of the murder she went to the house of her mother and stepfather, where she heard an argument between her sister Debbie and her stepfather. The defendant went into the basement. Debbie ran into the basement screaming that she was going to kill Warchol. The defendant then followed Debbie upstairs, where she saw Debbie stabbing Warchol. While trying to stop the stabbing, she was accidentally stabbed in the finger. The defendant testified that she never hit Warchol with a pipe and that she did not see Debbie hit him with a pipe.
Following closing arguments, the jury was given guilty and not guilty verdict forms on aggravated battery, voluntary manslaughter and murder. The ...